Schutte v. Celotex Corp., Docket No. 123691

• Decision Date: 21 September 1992
• Docket Number: Docket No. 123691
• Citation: 196 Mich.App. 135,492 N.W.2d 773
• Parties: , Prod.Liab.Rep.(CCH)P 13,469 Jean Marie SCHUTTE, Personal Representative of the Estate of Edward R. Tarnosky, Deceased, Plaintiff-Appellee, v. The CELOTEX CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 773

492 N.W.2d 773

196 Mich.App. 135, Prod.Liab.Rep.(CCH)P 13,469

Jean Marie SCHUTTE, Personal Representative of the Estate of Edward R. Tarnosky, Deceased, Plaintiff-Appellee, v. The CELOTEX CORPORATION, Defendant-Appellant.

Docket No. 123691.

Court of Appeals of Michigan.

Submitted May 21, 1992, at Detroit.

Decided Sept. 21, 1992, at 9:30 a.m.

Released for Publication Dec. 21, 1992.

Henderson & Goldberg, P.C. by Joel Persky, Saginaw, for plaintiff.

Collins, Einhorn & Farrell, P.C. by Clayton F. Farrell and Noreen L. Slank, Southfield, for defendant.

Before SHEPHERD, P.J., and MURPHY and HOUK, ^* JJ.

MURPHY, Judge.

Defendant appeals from a judgment entered after a jury found it liable for negligence related to the death of Edward Tarnosky, plaintiff's decedent. We affirm.

Edward Tarnosky died from lung cancer on April 16, 1982, after working as a plumber and pipefitter for thirty-four years. During his work, Mr. Tarnosky was exposed to various products containing asbestos, including "Carey cement," a product manufactured by defendant's corporate predecessor.

Plaintiff brought this action, alleging in part that defendant was liable for negligence because defendant's predecessor failed to warn Mr. Tarnosky of the dangerous nature of its asbestos products. Robert Abbs, Mr. Tarnosky's former co-worker, testified that he and Mr. Tarnosky had worked together and that Mr. Tarnosky had been exposed to various asbestos products, including Carey cement, for a period of approximately three months. Mr. Abbs testified that when he worked as an insulator at the Chevy Powerhouse, the decedent and other pipefitters would work above, below, and next to him and other insulators, and that asbestos dust was visible in the air and on their clothing. Dr. Gerritt Schepers, plaintiff's medical expert, testified that less than a three-month exposure to asbestos was sufficient to cause asbestosis and lung cancer and that the exposure to asbestos was a causative factor in Mr. Tarnosky's contracting lung cancer and ultimately in his death. Dr. Schepers also testified that Mr. Tarnosky's cigarette smoking was a substantial contributing factor to his contracting lung cancer. At the conclusion of the trial, the jury found defendant liable and awarded plaintiff $300,000. The trial court reduced the verdict by an amount equal to prior settlements reached by plaintiff with former defendants.

I

Defendant first contends that the trial court erred in denying defendant's motions for a directed verdict and judgment notwithstanding the verdict because plaintiff failed to show that exposure to Carey cement was a substantial factor in Mr. Tarnosky's lung cancer, and therefore failed to show proximate cause.

Directed verdicts are not favored, especially in negligence actions. Vsetula v. Whitmyer, 187 Mich.App. 675, 679, 468 N.W.2d 53 (1991); Goldman v. Phantom Freight, Inc., 162 Mich.App. 472, 477, 413 N.W.2d 433 (1987). This Court reviews a trial court's decision regarding a motion for a directed verdict to determine whether, viewing the evidence in the light most favorable to the nonmoving party, a question of fact for the jury existed. Stoken v. J.E.T. Electronics & Technology, Inc., 174 Mich.App. 457, 463, 436 N.W.2d 389 (1988). The trial court's decision to grant or deny a motion for a directed verdict will not be disturbed on appeal unless the trial court abused its discretion. Howard v. Canteen Corp., 192 Mich.App. 427, 431, 481 N.W.2d 718 (1992). Similarly, judgment notwithstanding the verdict is improper where the evidence is such that reasonable minds could differ. Byrne v. Schneider's Iron & Metal, Inc., 190 Mich.App. 176, 179, 475 N.W.2d 854 (1991).

Liability for negligence does not attach unless the plaintiff establishes that the injury in question was proximately caused by the defendant's negligence. Brisboy v. Fibreboard Corp., 429 Mich. 540, 547, 418 N.W.2d 650 (1988); Nichols v. Clare Community Hosp., 190 Mich.App. 679, 684, 476 N.W.2d 493 (1991). When there is more than one factor contributing to produce an injury, the negligence of one actor is the proximate cause of the injury only if it was a substantial factor in producing the injury. Brisboy, supra, 429 Mich. at 547, 418 N.W.2d 650; Vsetula, supra, 187 Mich.App. at 682, 468 N.W.2d 53. Proximate cause is usually a factual issue for the jury to determine. Vsetula, supra, at 682, 468 N.W.2d 53.

In this case, plaintiff introduced evidence that Mr. Tarnosky was exposed to Carey cement for a period sufficient to cause injury and that occupational exposure to asbestos was a cause of his lung cancer and death. From the evidence presented, a reasonable juror could have concluded that exposure to defendant's asbestos product was a substantial factor in causing Mr. Tarnosky's lung cancer and death. The trial court therefore properly denied defendant's motions for a directed verdict and judgment notwithstanding the verdict. See Brisboy, supra, 429 Mich. at 548-549, 418 N.W.2d 650.

II

Defendant next contends that it was entitled to a directed verdict or judgment notwithstanding the verdict because plaintiff failed to adequately identify defendant's product. Defendant correctly notes that plaintiff cannot establish exposure to the particular product through evidence that the product was simply present somewhere in Mr. Tarnosky's workplace, but must instead show that the product was used in the specific area in which Mr. Tarnosky worked. Barlow v. John Crane-Houdaille, Inc., 191 Mich.App. 244, 247-251, 477 N.W.2d 133 (1991).

Plaintiff, however, presented evidence that Mr. Tarnosky was directly exposed to Carey cement, and not merely that the product was present at the workplace. Viewing the evidence in the light most favorable to plaintiff, a question of fact for the jury existed regarding whether Mr. Tarnosky was exposed to Carey cement.

III

Defendant also contends that it was entitled to a directed verdict or judgment notwithstanding the verdict because plaintiff failed to demonstrate that, had defendant's predecessor warned of the danger, the risk of injury would have been avoided. Generally, when proceeding under a theory of liability based on a negligent failure to warn, proximate cause cannot be established unless it is shown that an adequate warning would have prevented the plaintiff's injury by altering the conduct involved. Nichols, supra, 190 Mich.App. at 684, 476 N.W.2d 493. See, e.g., Woodworth v. Gates Learjet Corp., 173 Mich.App. 480, 434 N.W.2d 167 (1988); May v. Parke, Davis & Co., 142 Mich.App. 404, 418, 370 N.W.2d 371 (1985); Falkner v. John E. Fetzer, Inc., 113 Mich.App. 500, 317 N.W.2d 337 (1982).

We believe, however, that in certain circumstances the jury should be permitted to infer that a warning would have resulted in the product not being used or other appropriate action being taken to heed the warning. In Muilenberg v. Upjohn Co., 115 Mich.App. 316, 332-333, 320 N.W.2d 358 (1982), the doctor who had prescribed the defendant manufacturer's drug for the plaintiff testified that he had not been warned regarding the dangers of the drug in question, and that he had prescribed the drug as an alternative to another drug that he did not want to prescribe because it had serious side effects. This Court reasoned that, because the doctor had not been warned, the doctor did not hesitate to prescribe the drug and that there was,...